Terms and conditions of employment

• Author: Christopher Rootham
• Pages: 313-368

 

TERMS AND CONDITIONS

OF EMPLOYMENT

A. INTRODUCTION

is chapter concerns some of the terms and conditions of employment for em-

ployees in the federal publ ic service. It is beyond the scope of this bo ok, or prob-

ably any book, to prepare a complete descript ion of all of the terms and conditions

of employment of federal public servants . For one thing, many of these terms and

conditions are contained in collective agreements, so will obviously dier from

bargaining u nit to bargaining unit. For anot her, there are simply too many terms

and conditions to list. As the Supreme Court of Canada has put it: “e terms

and conditions of employment of the federal government’s quarter of a million

current workers are set out in statutes, collective agreements, Treasury Board

directives, regulations, ministerial orders, and other documents that consume

bookshelves of loose-leaf bi nders. Human resources personnel are recru ited into

the system, spend a career at tempting to understand it and die out of it.”

Rather than devalue the eorts of human resource personnel, who “spend a

career” learning to understand the terms and conditions of employment, by at-

tempting to summar ize these terms and conditions in a sing le chapter, this book

will fo cus on some of the ser vice-wide conditions , as well as those t hat are, if not

unique, then at least particularly relevant to the public service. is book will

also mention, in summa ry only, some of the most frequently litigated terms and

conditions applic able in the core public admini stration.

Vaughan v. Canada (Attorney Ge neral), []  S.C.R.  at para.  [Vaughan].

313

314         

B. TERMS AND CONDITIONS FOR UNREPRESENTED

EMPLOYEES

Between  and  percent of employees in the federa l public service are not repre-

sented by a bargaining agent. For represented employees, t heir terms and condi-

tions of employment are set out in various col lective agreements. Unrepresented

employees obviously do not have their terms and conditions set out in collective

agreements, and must have those terms a nd conditions set out elsewhere.

Until recently, the status of unrepresented employees was a matter of some

dispute. e Supreme Court of Canada in a  decision stated that a junior

non-unionized employee could sue the government of Quebec for an employ-

ment-related debt in small claims court. In so doing, the Supreme Court stated

that this ca sual employee was a “contract employee,” and that it did not see “any-

thing preventing application of the ordinary law of contract” to that case. Even

aer that case, t he nature of the relationship between the Crown and public ser-

vants was still in doubt, as it was not clear whether the Labrecque decision ap-

plied outside of junior, casual employees.

is doubt was resolved by the Supreme Court of Ca nada in a  decision,

Wells v. Newfoundland. In that case, Mr. Wells was dismissed from h is position

as member of the Newfoundland Public Utilities Board when the Newfound-

land Legislat ure reconstituted the Board with fewer member s. Mr. Wells was ap-

pointed to hold oce during good behaviour until the age of seventy — in fact,

he was dismissed wel l before his seventieth birthday. erefore, he claimed d am-

ages for this unjust dism issal. e Supreme Court of Canada upheld his cla im for

damages, and i n so doing conrmed that senior public ser vants and public oce

holders have a contractu al relationship with the ir employer. e Court stated:

 AccordingtoPublicServiceHumanResourcesManagementAgencyofCanada,According to Public S ervice Human Resou rces Management Agency of Ca nada, Em-

ployment Equit y in the Federal Public Serv ice – there were , employees in

the core public admi nistration as of  Ma rch . e Public Serv ice Sta Relations

Board, th Annual Report – stated th at , employees of Treasury Boa rd

were represented by a barga ining agent as of  March   — meaning that . per-

cent of Treasury Boa rd employees were represented by a bargai ning agent as of that date

(or that . percent of employees were unrepresented). It is more d icult to determine

the union densit y of the Canada Revenue Agency b ecause approximately , ter m

employees are hired e ach year during peak t ax ling seas on: Canada Customs and

Revenue Agency, Annual Report to Parliament –. By way of comparison , the

union density rat e for the government sector in Ca nada is approximately  percent :

Human Resource s and Social Development Ca nada, Workplace Information Dire ctor-

ate, Union Membership in C anada—; and Statist ics Canada, Perspectives on Labour

and Income, Fact S heet on Unionization, vol. , no.  (Aug ust ).

Attorney Ge neral of Quebec v. Labrecque, []  S.C.R.  at  [Labrecque].

 []S.C.R.[[]  S.C.R.  [Wells].

315Chapter Ten: Terms and Conditions of Employ ment

In my opinion, it is time to remove uncertainty and conrm that the law re-

garding senior c ivil servants accord s with the contemporary u nderstanding of

the state’s role and obligations i n its dealings with employees. Employ ment in

the civil service is not feudal servitude. e respondent’s position was not a

form of monarchical patronage. He was employed to carry out an important

function on behalf of the citizens of Newfoundland. e government oered

him the position, terms were negotiated, and an agreement reached. It was a

contract.

As Beetz J. clearly observed in Labrecque,supra, the common law views

mutually agreed employment relationships through the lens of contract. is

undeniably is the w ay virtually e veryone dealing wit h the Crown sees it. While

the terms and cond itions of the contract may be dictate d, in whole or in part,

by statute, the employment relationship remains a contract in substance and

the general law of contr act will apply unless s pecically superceded by e xplicit

terms in the st atute or agreement.

ere are exceptions to this rule: judges, ministers of the Crown, and other

people who ll constitutionally dened state roles do not have their terms and

conditions dictated by contract, but by “the terms and conventions of the Con-

stitution.”

Having established that public servants are in a contractual relationship

with the Crown, what then are the terms and conditions of that contract? In

Wells, the Supreme Court stated that these terms are found in “the written and

verbal mani festations of the agreement [in that ca se, on hiring], applicable stat-

utes and regulations, and the common law.” In the passage from Vaughan cited

above, the Supreme Court mentioned “statutes, collective agreements, Treasury

Board direct ives, regulations, ministeri al orders, and other documents.”

e Supreme Court of Canada did not speci fy whether the various implied

terms of employment contracts — in pa rticular, the obligation to provide reason-

able notice prior to dismissa l, or the obligation of good faith and fair dea ling in

the manner of dismissal — were included in the employment contracts of un-

represented public servants. In Hladky v. Alberta, the Alber ta Court of Appeal

concluded that the implied ter m requiring reasonable notice of dism issal applied

to se nior pu blic se rva nts in A lber ta. e Cour t of App eal co nclude d that it woul d

take very speci c statutory provisions to eliminate those i mplied terms, and that

Alberta’s Public Service Act did not contain thes e specic terms, notwithsta nding

that the statute perm itted the government to “release” employees whose positions

Ibid. at para s. –.

Ibid. at para . .

Wallace v. United Grain Growers Ltd., []  S.C.R.  .

 []A.J.No.(Q.B.),a’d[]A.J.No.(C.A.).[] A.J. No.  (Q.B.), a’d [] A.J. No.  (C.A.).